Negligence

Question 1

What is a tort

Answer 1

a breach of legal duty

Question 2

What is the remedy for a contract breach compareed to the remedy for a tort breach

Answer 2

Damages awarded to put cliamant back in position as if the contract was not breached
Damages awared to put claimaint in position as if the tort was not breached

Just because contract not nessarily tort will depend on relationship

Question 3

What if a contract exists and a tort breach takes place

Answer 3

the claimant can choose the remedy

Question 4

What are the limitation periods

Answer 4

contract breach 6 years
tort breach 6 years
personal injury 3 years

Question 5

What conditions must be satisfied for an action for tort to be succesful

Answer 5

1) there must be an act or omission by the defendent
2) the act or omission must have directly caused the damage or injury to claimant
3) court establish legal liability as a result of damage

Question 6

Explain remotenes

Answer 6

The damage or loss suffered mst not be too remote / must be direct consequence of something the defendent did or didnt do

Question 7

What is negligence

Answer 7

The breach of a legal duty to take care which results in damages to another person

Question 8

What is the test to determine whether a duty of care exists

Answer 8

• Was the damage Reasonable & foreseable
• Neighbourhood principal (closeness between parties)
• Fair and resoanble to impose duty of care
• Is there public policy which exists to show no duty of care

Question 9

What is economic loss

Answer 9

cant claim economic loss ie cost of replacing the ipod

Question 10

How is a breach establish

Answer 10

Claimant proves there has been a breach (did not take resonable care)
Often res ipsa loquitor (the thing speaks for itself)
Burden of proof shift to defendent

Question 11

What is particular skill principal

Answer 11

Level of skill and care is that of which a resonable man would possess.
If defendent possess a particular skill ie accountant then resoanble for that skill level

Question 12

What is lack of skill principal

Answer 12

Trainee accountant still expected level of qulified accountant

Question 13

Lack of hindsight principal

Answer 13

The test focus on the defendents knowledge at the time hindsight is irreclevant (not guidence given after horse yard)

Question 14

Explain 
Body of opinion 
Advantage of risk 
Emergency 
Vulnerability

Answer 14

body of opinion - general practice of that body ie icaew or yard ownder
Advantage of risk - resonable care - weigh up benefits and risk of defendents actions
Emergency - if an emergency will take into consideration
Vulnerability - higher standard of care if vulnerable

Question 15

What is normally recoverable

Answer 15

• Loss as a result of Personal injury
• Damage to property
• Financial loss directly connected to personal injury (loss of wage)

NOT pure financial loss ie lost profits

Question 16

What are the main elements of a tort

Answer 16

On the balance of probabilities that

1) act or omission by defendent
2) act or omission directly caused damage or injury
3) court establish legal liability

NOT intention to cause (irrelevant)

Question 17

What is the basis for decision in the Hedley Byrne v heller & partners case (bank)

Answer 17

That a duty is owed to a person the defendent knew or ought to have known would rely on the statement

Question 18

Defences in negligence explain the following

• Contributory negligence
• Volenti non fit injuria
• Exclusion clauses

Answer 18

1) part responsible therefore reduced damages
2) consent to risk (not just aware of risks)
3) Exclusion clause in contract unless unfair
‘act of god’

Question 19

What is vicarious liability

Answer 19

employer liable for employee action in course of employment

Question 20

What is vicarious liability and agent

Answer 20

A principal is liable for agents action in course of agent relationship

Question 21

In a negligence claim does a pre existing relationship need to exist

Answer 21

no (often strangers)

Question 22

What does does the Donoghue v stevenson case show - ginger beer

Answer 22

Duty of care even if no contractual relationship
suffiecient degreen of proximety neighbour principal
Manufactor owe to of care to consumer of products

Question 23

What does the Hedley Byrne case show (bank)

Answer 23

Redifined the neighbourhood principal by acknowledging that a claim for financial loss could be made if a special relationship exsisted

Question 24

Learner driver hits vulnerable old women

Answer 24

reasonable care is that of a qualified drive although not exstended for vulnerability becasue was not aware she is vulnerable

Question 25

What is the caparo case

Answer 25

auditors are not liable as accounts are intended for management of company not investing desions / protential lenders

Question 26

In terms of auditors explain 
misleading info 
Exemplting liability 
liability limitation agreement 
Company indemnify auditor

Answer 26

Misleading - may be be fined
Void any exemption for liability
allowed to agree on liability limitation

Question 27

What are the factors considered when establishing a duty of care in respect of a statement made

Answer 27

Purpose 
Skill
Knowledge at time
Responsability 
Size & class of person ie shareholders 
Exstent to which advice was given 
Forceasble 
Fair and equitable

Question 28

Explain the unfair contract terms act

Answer 28

cannot exclude liability for personal injury

Business to Business and Business to consumer

Question 29

What needs to be resoanbly forseable

Answer 29

THE TYPE OF DAMAGED SUFFERED not the manner or the exstent